NOT RECOMMENDED FOR PUBLICATION File Name: 25a0010n.06
No. 24-3187
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 13, 2025 KELLY L. STEPHENS, Clerk ) RALPH SMITH, ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE SOUTHERN DISTRICT OF ) OHIO DAVID SILVERNAIL, et al., ) Defendants-Appellants. ) OPINION ) )
Before: SILER, CLAY, and READLER, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Ralph Smith was convicted in 2000 for the purported
robbery of a family’s home in Pickerington, Ohio. Twenty-one years later, the emergence of
exculpatory evidence prompted the state court to grant a new trial and the local prosecuting
attorney to drop the case against Plaintiff. Shortly after his release, Plaintiff filed suit under
42 U.S.C. § 1983 against the investigating detective in his case, David Silvernail (“Detective
Silvernail”); the assistant prosecuting attorney, Gregg Marx (“Marx”); and their respective
employers, the City of Pickerington and Fairfield County. The district court granted Marx’s motion
to dismiss and later granted summary judgment in favor of the remaining defendants. Plaintiff
appeals both judgments. For the reasons that follow, we AFFIRM the district court’s judgment. No. 24-3187, Smith v. Silvernail, et al.
I. BACKGROUND
A. Factual History
This case arises from Plaintiff’s 2000 conviction for robbery, kidnapping, and theft, which
was vacated twenty-one years later after Plaintiff prevailed on a motion for new trial. Plaintiff
brings this suit against various actors involved in the investigation and prosecution that led to his
alleged wrongful imprisonment.
a. Evidence Presented at Trial
Plaintiff’s conviction stemmed from an alleged February 2000 home invasion incident.
The victims were a Pickerington, Ohio family: Rudy Stefanitsis, Trisha Stefanitsis, and their three
children. On February 2, 2000, at around 10:30 PM, two black males entered the Stefanitsis home
with weapons. The intruders’ faces were partially covered, and the Stefanitsises did not recognize
either intruder. The perpetrators allegedly then broke into the family safe and stole rare comic
books and nearly $11,000 in cash. They also stole jewelry from Rudy and Trisha’s bedroom and
$400 in cash from Rudy’s wallet. At several points during this home invasion, one of the intruder’s
masks kept slipping, briefly revealing his face to the Stefanitsises. After ransacking the home, the
intruders tied up Rudy and Trisha with electrical tape and fled the house. Rudy and Trisha freed
themselves, gathered their children, fled to the home of Rudy’s brother, and later went to the
Pickerington Police Department to report the incident.
In the following days and weeks, Detective Silvernail was assigned to the case and began
to conduct an investigation. That investigation focused on finding potential suspects based on
Rudy and Trisha’s eyewitness descriptions. During the investigation, an acquaintance of the
Stefanitsises’ suggested that Plaintiff may have been involved with the incident. Rudy told this
information to Detective Silvernail, who then created a six-photograph array which contained
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photographs of Plaintiff and five other individuals. Detective Silvernail then conducted
independent verifications with Rudy and Trisha, and both identified the photo of Plaintiff as one
of the intruders. Following these verifications, Detective Silvernail interviewed Plaintiff, who
denied involvement in the incident.
In August 2000, Plaintiff was tried for two counts of aggravated burglary, three counts of
aggravated robbery, two counts of kidnapping, and one count of theft. The case was prosecuted
by Marx, who served as senior Assistant Prosecuting Attorney. Plaintiff did not call any witnesses
at trial and was subsequently found guilty on all charges.
b. Evidence Discovered After Trial
In the years following the August 2000 convictions, new evidence slowly came to light
casting doubt on Plaintiff’s guilt. One piece of evidence, which was never disclosed to Plaintiff
or his counsel, concerned a search of the Stefanitsis home on the night of February 2, 2000. Several
hours after the Stefanitsises reported the home invasion to the police, two Pickerington officers
arrived at the home to conduct an investigation. One of the officers was Gregory Annis, who
recorded his observations in a narrative summary. Officer Annis’ narrative summary appears to
be skeptical that the home intrusion occurred exactly as the Stefanitsises described, noting: (1)
there were no footprints or tire tracks outside the home even though it had just snowed; (2) the
front door to the house was ajar with only “slight damage to the door jam [sic];” (3) “the house
was generally unkept but did not appear to be ransacked;” and (4) “[t]he house was gone through
too selectively for my taste” because “[t]he ‘subject(s)’ forcing entry into the house would have to
have been familiar with the victims as well as the contents and their locations of the house.” R.
106-1, Page ID #4915. According to Plaintiff, Marx did not provide this material to Plaintiff’s
trial counsel.
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Other potentially exculpatory evidence involving Detective Silvernail was also
undisclosed. First, Detective Silvernail prepared an investigative summary, in which he detailed
the investigatory steps he and the police department took. That summary reveals that the
Pickerington Police Department interviewed four sets of the Stefanitsises’ neighbors, none of
whom had heard or seen anything suspicious or out of the ordinary that night. In fact, two of the
neighbors noted that they either left or arrived at their homes during the time of alleged robbery.
Second, Detective Silvernail conducted an interview with Rudy two days after the incident, in
which Rudy stated: “I know for sure [an individual who is not Plaintiff] has something to do with
it. I guarantee a hundred percent.” Id. at Page ID #5042. Third, Trisha told Detective Silvernail
during an interview that on the morning of the incident, Rudy had seen a black Geo Tracker vehicle
with green lettering driven by two black males outside of the Stefanitsises’ house. Fourth, both of
the Stefanitsises provided Detective Silvernail with a list of individuals who knew about the
existence of the safe containing the money and comic books. Fifth, Detective Silvernail and Rudy
had a recorded telephone conversation on an unknown date in which Rudy said that “it doesn’t
make sense to me” that Plaintiff was the intruder. R. 106-2, Page ID #5093. Rudy repeatedly
emphasized that his confusion stemmed from the fact that Plaintiff “does not know me at all,” even
though Rudy was “100 percent sure” that the picture of Plaintiff in the line-up matched Rudy’s
recollection of the intruder. Id. at Page ID #5093–94. Sixth, in her interview with Detective
Silvernail the day after the robbery, Trisha stated that she “couldn’t tell [Detective Silvernail]
nothing about” the robber whose mask kept slipping. R. 106-1, Page ID #4960.
Finally, in preparing this case for prosecution, Marx met with the Stefanitsises. On March
6, 2000, Marx visited the Stefanitsises at their home and spoke with the couple regarding the events
of the incident. Marx specifically wanted to determine how confident both Rudy and Trisha were
-4- No. 24-3187, Smith v. Silvernail, et al.
in their identification of Plaintiff and questioned the couple extensively on this issue. The couple’s
responses convinced Marx that the Stefanitsises were credible and that Plaintiff was indeed the
perpetrator; this, in turn, made Marx comfortable with charging Plaintiff.
B. Procedural History
On June 9, 2021, after nearly twenty-one years of imprisonment, the Common Pleas Court
of Fairfield County, Ohio granted Plaintiff’s motion for a new trial. The government subsequently
filed a motion of nolle prosequi and abandoned prosecution. On this basis, the Court of Common
Pleas then declared Plaintiff a “wrongfully imprisoned individual.”
On March 26, 2022, Plaintiff filed the operative amended complaint in the U.S. District
Court for the Southern District of Ohio alleging various constitutional claims and municipal
liability pursuant to 42 U.S.C. §§ 1983, 1985. Plaintiff alleged ten separate causes of action:
(1) false arrest against Detective Silvernail; (2) malicious prosecution against Detective Silvernail
and Marx; (3) Brady1 violations against Marx; (4) concomitant and derivative disclosure violations
against Detective Silvernail; (5) conspiracy to violate substantive and procedural due process
rights against Detective Silvernail and Marx; (6) wrongful conviction against Detective Silvernail
and Marx; (7) false imprisonment against Detective Silvernail and Marx; (8) a Monell2 claim
against the City of Pickerington, Ohio; (9) a Monell claim against Fairfield County, Ohio; and (10)
costs and attorney’s fees.
Fairfield County and Marx moved to dismiss the Amended Complaint. They argued that
the claims against Marx were barred by the Eleventh Amendment, that Marx was entitled to
absolute prosecutorial immunity, and that Plaintiff had failed to plead a viable Monell claim against
1 Brady v. Maryland, 373 U.S. 83 (1963). 2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). -5- No. 24-3187, Smith v. Silvernail, et al.
Fairfield County. The district court agreed in part with the motion, finding that Plaintiff’s official
capacity claims against Marx were barred by the Eleventh Amendment and the personal capacity
claims were subject to absolute prosecutorial immunity. Accordingly, the district court dismissed
Marx as a defendant in the litigation. Yet the court also found that Plaintiff had sufficiently pled a
Monell violation against Fairfield County.
On October 27, 2022, Plaintiff moved for partial summary judgment, and on April 21,
2023, the remaining defendants moved for summary judgment. The district court denied Plaintiff’s
partial summary judgment motion and granted the remaining defendants’ motions. First, the court
first examined each of the claims against Detective Silvernail and found that Plaintiff had failed to
present sufficient evidence for each cause of action. The court then found that because Plaintiff
could not sustain any claim against Detective Silvernail, he similarly could not maintain a claim
of supervisory liability against the City of Pickerington. Finally, the court granted summary
judgment the on Monell claim against Fairfield County, finding that Plaintiff’s evidentiary
showings were insufficient. Plaintiff now appeals both the grant of Marx’s motion to dismiss and
the grant of the remaining defendants’ summary judgment motions.
II. DISCUSSION
A. Standard of Review
Dismissals based on Federal Rule of Civil Procedure 12(b)(6) are reviewed de novo.
Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir. 2015). To survive a motion to dismiss, a plaintiff
must allege “facts that ‘state a claim to relief that is plausible on its face’ and that, if accepted as
true, are sufficient to ‘raise a right to relief above the speculative level.’” Handy-Clay v. City of
Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007)). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks
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for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). In its review, “a district court must
construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and
draw all reasonable inferences in favor of the plaintiff.” Wesley, 779 F.3d at 428 (citation and
quotation marks omitted).
With respect to summary judgment, “[w]e review a district court order granting summary
judgment under a de novo standard of review, without deference to the decision of the lower court.”
Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014) (citation and quotation
marks omitted). Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” “A dispute of a material fact is genuine so long as the evidence
is such that a reasonable jury could return a verdict for the non-moving party.” Kirilenko-Ison v.
Bd. of Educ. of Danville Indep. Schs., 974 F.3d 652, 660 (6th Cir. 2020) (cleaned up). “When
evaluating a motion for summary judgment, this Court views the evidence in the light most
favorable to the party opposing the motion.” Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). “This includes drawing all justifiable inferences in the
nonmoving party’s favor.” Id. (citation and quotation marks omitted).
B. Analysis
1. Claims against Marx
The Supreme Court has long recognized that certain individuals “whose special functions
or constitutional status requires complete protection from suit” are entitled to absolute immunity.
Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). “That brand of immunity extends to government
officers like prosecutors whose activities are ‘intimately associated’ with the judicial process.”
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Price v. Montgomery Cnty., Kentucky, 72 F.4th 711, 719 (6th Cir. 2023) (quoting, inter alia, Imbler
v. Pachtman, 424 U.S. 409, 430 (1976)). This “immunity has a long reach—it extends even to
unquestionably illegal or improper conduct, including instances where a defendant is genuinely
wronged.” Id. (citation and quotation marks omitted). Yet there are limits to absolute prosecutorial
immunity. For example, “instances where the prosecutor’s actions are not intimately associated
with the judicial process,” such as investigative or administrative efforts, “fall[] outside the cloak
of absolute immunity.” Id. at 719–20.
The district court granted Marx’s motion to dismiss on the grounds that Marx was protected
by absolute prosecutorial immunity. Plaintiff’s appeal of this finding does not focus on Marx’s
actions immediately before and during Plaintiff’s trial. This is unsurprising, given that any actions
taken by Marx in his prosecution of Plaintiff, even actions such as illegally withholding Brady
material, are undoubtedly protected by absolute immunity. See Koubriti v. Convertino, 593 F.3d
459, 467–68 (6th Cir. 2010). Instead, Plaintiff focuses his argument on one specific action: Marx’s
interview of the Stefanitsises on March 6, 2000. As the district court correctly notes: “The entirety
of Plaintiff’s individual capacity claim against Defendant Marx must rest solely on his contention
that Marx acted as an investigator during the March 6, 2000, meeting.” Mot. Dismiss Order, R.
54, Page ID #1126. Plaintiff argues that this action is not subject to absolute prosecutorial
immunity because it constituted an “investigative effort to obtain an arrest warrant,” which under
this Circuit’s precedent is not protected by absolute immunity. Appellant Br., ECF No. 41, 33
(citing, inter alia, Spurlock v. Thompson, 330 F.3d 791 (6th Cir. 2003)). Plaintiff further argues
that from this evidence, “[i]t is entirely reasonable to infer” that “Marx and Silvernail met with the
Stefanitsises before they initially filed charges . . . to create the appearance of probable cause by
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pressuring Rudy Stefanitsis to retract his denial that he had identified appellant during the photo
array, and to instead agree to testify that he had identified appellant.” Id. at 36.
Plaintiff’s argument misses the mark. First, the conclusions Plaintiff draws from this
interview are too much of a logical leap. Plaintiff contends that the occurrence of this interview
leads to the reasonable inference that this meeting was specifically designed to pressure “Rudy
Stefanitsis to retract his denial that he had identified appellant during the photo array, and to instead
agree to testify that he had identified appellant.” Id. But the allegations in the Amended Complaint
merely state that Marx’s “investigation included his March 6, 2000 in-person visit with and
interview of the Stefanitsises” and that this visit “is the only known act or event which caused the
Stefanitsises . . . to reverse their longstanding inability to describe either of the robbers.” Am.
Compl., R. 1, Page ID #77. This second purported allegation is entirely speculative. As the district
court aptly noted, “Plaintiff does not provide any factual allegations about what Marx said, what
questions he asked during the alleged interrogation, or how he influenced the Stefanitsises.” Mot.
Dismiss Order, R. 54, Page ID #1127. Thus, the district court was correct in finding that “Plaintiff
relies on a speculative leap” that has little basis in the allegations of his Amended Complaint. Id.
Second, Plaintiff contends that this interview was investigatory in nature as it formed the
basis for Plaintiff’s arrest warrant. Yet as the district court correctly found, the Stefanitsises had
already identified Plaintiff as one of the perpetrators weeks prior to their interview with Marx.
This fact undermines Plaintiff’s argument that the interview was investigatory; instead, the
evidence and allegations suggest that the interview merely existed to reinforce Marx’s confidence
in charging Plaintiff. Plaintiff has not identified, and we are unaware of, case law in this Circuit
holding that confirming a decision to charge a suspect constitutes investigatory work.
-9- No. 24-3187, Smith v. Silvernail, et al.
Plaintiff argues that this case is analogous to Harris v. Bornhorst, 513 F.3d 503 (6th Cir.
2008). Harris involved a wrongfully convicted plaintiff who brought suit against a prosecutor
after the prosecutor instructed local police to arrest the plaintiff. Harris, 513 F.3d at 508. This
Court concluded that the prosecutor was not shielded by absolute immunity, as the prosecutor’s
direct instruction to arrest the plaintiff “without soliciting any officer’s opinion” “went beyond
merely advising the police.” Id. at 510–11. That case, however, bears little relation to this case.
The core of the Court’s reasoning in that case was that direct instructions to police officers are not
the kind of activity that is shielded by absolute immunity. Id. In this case, however, no such direct
instructions took place, thus undermining the applicability of Harris.
These factors demonstrate that the district court was accurate in finding that Marx’s March
2000 interview falls under the umbrella of absolute prosecutorial immunity. Accordingly, the
district court did not err in dismissing all claims against Marx.
2. Claims Against Detective Silvernail
a. False Arrest
A false arrest claim requires the “plaintiff to prove that the arresting officer lacked probable
cause to arrest the plaintiff.” Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010) (citation
omitted). “Probable cause is a defense to false arrest.” Webb v. United States, 789 F.3d 647, 666
(6th Cir. 2015) (citation omitted). “For probable cause to exist for an arrest, the facts and
circumstances within the officer’s knowledge must be sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances shown, that the suspect has
committed, is committing or is about to commit an offense.” Weser v. Goodson, 965 F.3d 507,
513–14 (6th Cir. 2020) (cleaned up). “An arrest pursuant to a facially valid warrant is normally a
complete defense to a federal constitutional claim for false arrest or false imprisonment made
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pursuant to § 1983.” Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005)
(citing Baker v. McCollan, 443 U.S. 137, 143–44 (1979)).
Detective Silvernail and the City of Pickerington argue that there is a clear basis for
probable cause: the grand jury indictment. This Circuit has held that “the finding of an indictment,
fair upon its face, by a properly constituted grand jury, conclusively determines the existence of
probable cause for the purpose of holding the accused to answer.” Barnes v. Wright, 449 F.3d 709,
716 (6th Cir. 2006) (citation omitted). However, this Court has also held:
[W]here (1) a law-enforcement officer, in the course of setting a prosecution in motion, either knowingly or recklessly makes false statements (such as in affidavits or investigative reports) or falsifies or fabricates evidence; (2) the false statements and evidence, together with any concomitant misleading omissions, are material to the ultimate prosecution of the plaintiff; and (3) the false statements, evidence, and omissions do not consist solely of grand-jury testimony or preparation for that testimony (where preparation has a meaning broad enough to encompass conspiring to commit perjury before the grand jury), the presumption that the grand-jury indictment is evidence of probable cause is rebuttable and not conclusive.
King v. Harwood, 852 F.3d 568, 587–88 (6th Cir. 2017).
Plaintiff was indicted by a grand jury. Yet Plaintiff argues that the indictment is not
determinative of probable cause because Detective Silvernail and the Stefanitsises made false
statements that compromised the grand jury’s assessment. Plaintiff identifies two examples of
false statements: (1) Detective Silvernail wrote an inaccurate entry in his investigative summary
regarding Rudy’s identification of Plaintiff during the photo array; and (2) “the Stefanitsises’
purported identifications of appellant are simply incredible” because of the lack of detail and
conflicting nature of their identifications. Reply Br., ECF No. 44, at 10. However, this Circuit
requires a plaintiff to show specific evidence demonstrating that a “defendant has knowingly
presented false testimony to the grand jury to obtain an indictment.” Gonzalez v. Kovacs, 687 F.
- 11 - No. 24-3187, Smith v. Silvernail, et al.
App’x 466, 469 (6th Cir. 2017) (cleaned up). In this case, Plaintiff does not identify any false
evidence or testimony that was presented to the grand jury. He does not, for example, show that
Detective Silvernail’s purported false statements were in fact made to the grand jury.
The Court is left with no evidence to suggest that false testimony was knowingly
introduced to the grand jury. Plaintiff has therefore failed to rebut the presumption that a grand
jury indictment “conclusively determines the existence of probable cause.” Barnes, 449 F.3d at
716. Detective Silvernail has thus established a complete defense to the false arrest, and the district
court did not err in dismissing this claim.
b. Malicious Prosecution
The second claim at issue with respect to Detective Silvernail is malicious prosecution. To
prove a malicious prosecution claim, a plaintiff must show:
(1) a criminal prosecution was initiated against the plaintiff and the defendant made, influenced, or participated in the decision to prosecute; (2) there was no probable cause for the criminal prosecution; (3) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and (4) the criminal proceeding was resolved in the plaintiff's favor.
Johnson v. Moseley, 790 F.3d 649, 654 (6th Cir. 2015) (citation omitted).
The central issue of this claim mirrors the central issue of the false arrest claim: probable
cause. Malicious prosecution claims “fail[] when there was probable cause to prosecute.” Fox v.
DeSoto, 489 F.3d 227, 237 (6th Cir. 2007). And where a plaintiff “was indicted by a grand jury,”
that fact “generally serves as rebuttable proof of probable cause.” Price, 72 F.4th at 725 (citation
and quotation marks omitted). Plaintiff therefore runs into the same quandary that was fatal to his
false arrest claim; namely, that he was indicted by a grand jury, which is generally demonstrative
of probable cause. As explained above, Plaintiff has not shown that the grand jury indictment was
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based on knowingly false testimony. In fact, Plaintiff has not provided any evidence about the
kind of material or testimony that the prosecution presented to the grand jury. Plaintiff has
therefore failed to rebut the presumption that the grand jury indictment constitutes proof of
probable cause, and Defendant thus has a cognizable defense to the malicious prosecution claim.
Accordingly, the district court correctly found that Plaintiff cannot maintain this claim.
c. Concomitant and Derivative Disclosure Violations
Under this Circuit’s precedent, an investigating officer has a “Brady-derived responsibility
to turn over potentially exculpatory evidence to the prosecutor’s office.” Moldowan v. City of
Warren, 578 F.3d 351, 381 (6th Cir. 2009) (citation and quotation marks omitted).
Plaintiff argues that Detective Silvernail committed a Molodowan violation by failing to
disclose potentially exculpatory evidence to the prosecution. However, as the district court points
out, both Detective Silvernail and Plaintiff’s own investigator testified in their respective
depositions that Detective Silvernail provided his entire investigative file to the prosecutor’s office.
In fact, Plaintiff’s investigator testified that he reviewed the materials in the prosecutor’s files and
the materials in Detective Silvernail’s files, and found that those materials were identical. Plaintiff
attempts to rebut this by arguing (1) that “[n]o known evidence establishes which of Silvernail’s
investigation file documents he provided to Marx, or when those documents were provided;” and
(2) even if Detective Silvernail provided all of the documents in his possession to the prosecution,
“it is entirely reasonable to infer that Silvernail knew that Marx had withheld those records from
appellant and appellant’s counsel.” Appellant Br., ECF No. 41, 54.
Each of Plaintiff’s argument is unconvincing. First, it is not accurate to say that there is no
evidence to establish which of the documents were provided to the prosecutor’s office. Plaintiff’s
own investigator plainly stated that the documents contained in the prosecutor’s files were the
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same as those contained in Detective Silvernail’s files. It is thus apparent that the documents
handed over to the prosecution were in fact the entirety of Detective Silvernail’s documents
regarding the case.
Second, Plaintiff is correct that there appears to be no evidence establishing a definitive
date at which Detective Silvernail turned his documents over to the prosecutor’s office. However,
Plaintiff has provided no evidence to suggest that those documents were provided either after
Plaintiff was charged or after Plaintiff was tried and convicted. Instead, Plaintiff essentially asks
the Court to believe, absent any evidence, that it is possible that Detective Silvernail deliberately
withheld exculpatory files and only provided those files at some post-charging or post-conviction
date. Yet without any concrete evidence to support this suggestion, Plaintiff cannot maintain this
argument at the summary judgment phase. As the Supreme Court has warned, “[t]he mere
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Third and finally, Plaintiff asks the Court to make an inference and find it reasonable to
suggest that Detective Silvernail knew that the prosecutor withheld Brady material from the
defense. Assuming, arguendo, that Detective Silvernail knew about the Brady violation, that still
cannot form the basis of a cause of action. This Court has emphasized that “the role that a police
officer plays in carrying out the prosecution’s Brady obligations is distinct from that of a
prosecutor.” D’Ambrosio v. Marino, 747 F.3d 378, 389 (6th Cir. 2014). Police officers meet their
Brady obligations so “long as they inform the prosecutor about evidence that undermines the
state’s preferred theory of the crime.” Id. (cleaned up). It is not the job of the officer to disclose
evidence to the defense; it is only the prosecutor “that bears the responsibility for actually
disclosing exculpatory information to the defense.” Id. (citation omitted). Thus, even if Detective
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Silvernail knew that Marx had not disclosed Brady material to the defense, he was under no legal
obligation to inform Plaintiff or Plaintiff’s counsel.
Because Detective Silvernail turned over his entire file to the prosecution, and because
each of Plaintiff’s arguments fail, Plaintiff cannot maintain his concomitant and derivative
disclosure claim.
d. Conspiracy
Plaintiff alleges conspiracy under Section 1983,3 alleging that Detective Silvernail and
Marx conspired to deprive Plaintiff of his substantive and procedural due process rights.
Conspiracy under Section 1983 requires a plaintiff to show “that there was a single plan, that the
alleged coconspirator shared in the general conspiratorial objective, and that an overt act was
committed in furtherance of the conspiracy.” Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir.
1985).
This Circuit’s case law indicates that Plaintiff’s Section 1983 conspiracy is non-viable. In
Beckett v. Ford, this Court considered a case in which a plaintiff was prosecuted and convicted for
a crime that he did not commit. 384 F. App’x 435, 436–440 (6th Cir. 2010). Plaintiff then filed a
Section 1983 suit, alleging, inter alia, that a prosecutor and a local mayor conspired to maliciously
prosecute the plaintiff. Id. at 440. The Court affirmed the district court’s grant of summary
judgment on this claim, noting that the plaintiff’s conspiracy claim “turns on the probable cause
determination: if there was probable cause for the investigation and prosecution, then there was no
malicious prosecution, and necessarily [the defendants] cannot have conspired to engage in one.”
Id. at 457. In an earlier portion of the Beckett opinion, the Court found that there was probable
3 In his Amended Complaint, Plaintiff also pled conspiracy under 42 U.S.C. § 1985. However, Plaintiff states in his brief that he “is not pursuing his 1985(3) conspiracy claim in this appeal.” Appellant Br., ECF No. 41, 57. - 15 - No. 24-3187, Smith v. Silvernail, et al.
cause for the investigation and prosecution because a grand jury had returned an indictment that
was “fair upon its face.” Id. Thus, the Court concluded that because there was probable cause,
“there was no malicious prosecution, and necessarily [the defendants] cannot have conspired to
engage in one.” Id.
The analogy between Beckett and this case is clear. Like the plaintiff in Beckett, Plaintiff
alleges a malicious prosecution conspiracy. Furthermore, there was probable cause to arrest and
prosecute Plaintiff in this case because, as discussed earlier, a grand jury returned a fair indictment.
Thus, like Beckett, there was no malicious prosecution in this case because there was probable
cause; and because there was no malicious prosecution, Detective Silvernail and Marx could not
have conspired to engage in such an illegal act. Accordingly, the district court’s grant of summary
judgment on this claim was not in error.
3. Monell Claim Against the City of Pickerington
Plaintiff alleges a Monell claim against the City of Pickerington for Detective Silvernail’s
role in the prosecution and investigation. The district court noted that “[a] finding of Monell
liability against the City of Pickerington in this case would require an underlying constitutional
violation by the municipality’s employee.” Summ. J. Order, R. 124, Page ID #6649. Yet because
the district court found that “none of Plaintiff’s claims against Det. Silvernail survives summary
judgment,” the court concluded that “Plaintiff’s claims against Pickerington must also fail.” Id.
The district court’s finding was correct. As discussed above, none of the underlying
constitutional claims against Detective Silvernail are viable. And this Court has found that where
a court has “affirmed the district court’s decision in dismissing [a
plaintiff’s] underlying federal claims,” the court is “compelled to affirm [the district court’s]
decision dismissing the [Monell] claims against [the municipality] as well.” Henderson v. Reyda,
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192 F. App’x 392, 398 (6th Cir. 2006). Thus, the district court did not erroneously dismiss this
claim.
4. Monell Claim Against Fairfield County
Plaintiff alleges that Fairfield County is liable for the conduct of Marx. Specifically,
Plaintiff alleges municipal liability for Marx’s malicious prosecution and false imprisonment of
Plaintiff, conspiracy to fabricate and elicit perjured testimony, and Brady violations. He also
claims the County maintained a policy of inadequate training for its prosecutors.
a. Whether Plaintiff Had Adequate Opportunity to Respond
Plaintiff begins his argument regarding the Fairfield County claim by arguing that the
district court failed to give him adequate opportunity to argue this issue. He argues that the district
court granted summary judgment “on grounds which Fairfield County never asserted in its
motion.” Appellant Br., ECF No. 41, 59. He notes that the district court analyzed the various
grounds the Monell claim was predicated under (e.g., Marx’s alleged malicious prosecution and
false imprisonment), but that those grounds were never referenced in Fairfield County’s motion.
(Id.). According to Plaintiff, this violated Federal Rule of Civil Procedure 56(f)(2), which allows
a court to grant a summary judgment motion “on grounds not raised by a party” only after the court
has given the non-moving party “notice and reasonable time to respond.”
Plaintiff’s argument is misplaced. In its motion for summary judgment, Fairfield County
explicitly argued that Plaintiff could not maintain his Monell claim because there was no
underlying constitutional injury. The district court’s analysis subsequently analyzed each of the
underlying constitutional violations alleged by Plaintiff and found that none of them could form
the basis of a Monell claim. True, the district court did not adopt the exact reasoning in Fairfield
County’s brief in finding that the underlying constitutional violations were nonviable. Yet Plaintiff
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has not identified, and we are unaware of, case law holding that a court may not adopt reasoning
different from a movant’s arguments without first providing notice to the nonmoving party. In
fact, the standard under Rule 56(f)(2) is much lower. This Court has found that where party
explicitly seeks summary judgment on each of the claims in a complaint, that alone is sufficient
notice for Rule 56(f)(2) purposes. Bailey v. City of Howell, 643 Fed. App’x 589, 600 (6th Cir.
2016). The district court did not therefore commit a Rule 56(f)(2) notice error.
b. Underlying Constitutional Violations
This Court has held that “[t]here can be no liability under Monell without an underlying
constitutional violation.” Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014). The first portion
of the district court’s Monell analysis focused on this requirement, as the court examined whether
there was in fact a cognizable underlying constitutional violation.
The district court first found that malicious prosecution and false imprisonment could not
serve as the underlying constitutional violations because the court had already established that
there was probable cause for the arrest and prosecution. This finding was without error. As
explained earlier, there was probable cause for Plaintiff’s arrest and prosecution because the grand
jury issued a valid indictment. Considering this is a complete defense to malicious prosecution
and false imprisonment, see Bickerstaff v. Lucarelli, 830 F.3d 388, 397 (6th Cir. 2016), malicious
prosecution and false arrest cannot serve as the underlying constitutional violation.
The district court also found that conspiracy could not form the underlying constitutional
violation because Plaintiff had presented no evidence of an illicit agreement between Marx and
Detective Silvernail. The district court was correct in this assessment. As explained above,
Plaintiff has failed to establish a conspiracy between Marx and Detective Silvernail. This therefore
cannot serve as the underlying constitutional violation.
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The district court did, however, conclude that a Brady violation could serve as the
underlying constitutional violation. The court noted that a state court had already found that there
was a Brady violation in this case; thus, under the principle of collateral estoppel, the state court’s
determination had preclusive effect on this case. Perplexingly, Plaintiff appears to challenge this
finding. Plaintiff provides a list of evidence that, according to him, demonstrates that there was in
fact a Brady violation in this case. But the district court’s finding was in Plaintiff’s favor, and he
seems to misconstrue the district court’s holding as adverse to him. It is only Fairfield County that
has standing to challenge this finding, which it does not do. The district court therefore did not err
in finding that the Brady violation may serve as the underlying constitutional violation.
c. Liability Under Monell
The district court next examined the different means by which Monell liability could be
established. To hold a municipality liable under Monell, a plaintiff must show that the
municipality’s employees committed constitutional violations and “the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.” Monell, 436 U.S. at 690. This Circuit
has recognized four general ways in which a plaintiff can show Monell liability: “(1) the existence
of an illegal official policy or legislative enactment; (2) that an official with final decision-making
authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision;
or (4) the existence of a custom of tolerance or acquiescence of federal rights violations.” Burgess
v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citation omitted).
Plaintiff’s brief focuses only on the second of the means outlined by Burgess: a final
decision-maker ratified the illegal conduct. According to Plaintiff, Marx both committed the
Brady violation and had final decision-making authority in the prosecutor’s office. Plaintiff points
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to Marx’s deposition testimony, in which Marx stated that “[o]ther than the jury and the court of
appeals and the common pleas court, I was the chief decision-maker in the office.” Marx Dep., R.
85, Page ID #1453. Marx also stated in his deposition that he did not need Fairfield County
Prosecuting Attorney David Landefeld’s approval to bring the case against Plaintiff, did not
discuss the case with Prosecutor Landefeld, and that Prosecutor Landefeld did not have “any issue
with [Marx’s] handling of the case.” Id. at Page ID #1452–53. Finally, after Marx became the
Fairfield County Prosecuting Attorney in 2011, Defendant argues that Marx “ratified his own year-
2000 conduct by opposing [Plaintiff’s] post-trial efforts to obtain a new trial.” Appellant Br., ECF
No. 41, 67. Each of these factors, according to Plaintiff, demonstrate that Marx was the final
decision-maker with respect to the underlying constitutional violation.
Plaintiff’s argument is unpersuasive. The Supreme Court has clarified that “[t]he fact that
a particular official—even a policymaking official—has discretion in the exercise of particular
functions does not, without more, give rise to municipal liability based on an exercise of that
discretion.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481–82 (1986). Instead, the official
must “be responsible for establishing final government policy respecting such activity before the
municipality can be held liable.” Id. at 483. Pembaur clarifies that there are two means by which
an individual can be granted authority to make municipal policy: via legislative enactment or
delegation “by an official who possesses such authority.” Id. In this case, Plaintiff has shown no
evidence demonstrating that Marx had the kind of authority described in Pembaur. Nowhere does
Plaintiff suggest that at the time of the underlying constitutional violation, Marx had final
policymaking authority either through statutory authority or the permissible delegation of
authority. At most, Plaintiff provides evidence that Marx had a large degree of freedom to
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prosecute cases; but as the Supreme Court has warned, “discretion in the exercise of particular
functions” is not the equivalent of final policymaking authority. Id. at 482.
Blunt v. City of Roseville is instructive. No. 24-1136, 2024 WL 4543319 (6th Cir. Oct. 22,
2024). In that case, a plaintiff brought a Monell claim against a county for a malicious prosecution
by one of the county’s assistant prosecuting attorneys. Id. at *1. The plaintiff argued that the
assistant prosecuting attorney had final policymaking authority, as the assistant was given large
leeway in prosecuting his cases. Id. at *2. The Court rejected this argument. First, the Court
found that the plaintiff had failed to point to any state law vesting “assistant prosecuting attorneys
with authority to make final policy for the County.” Id. Second, the Court determined that the
plaintiff’s argument “conflate[d] the exercise of prosecutorial discretion in making the charging
decision with a delegation of authority to make final policy for the County.” Id. The plaintiff had
not provided any evidence showing “why the assistant prosecutor’s decision to charge her was
based on policy—rather than (as in the usual case) the prosecutor’s understanding of the relevant
circumstances and law.” Id. Such is the case here. Plaintiff has not identified any Ohio statute
that vests policymaking authority in assistant prosecutors such as Marx. In fact, Ohio law states
that final decision-making authority is vested in the county prosecuting attorneys, and that assistant
county prosecuting attorneys merely serve at the pleasure of the prosecuting attorney. See Ohio
Rev. Code §§ 309.06, 309.08, 309.09. Furthermore, Plaintiff has in no way indicated how Marx’s
prosecution was connected to policy rather than Marx’s “understanding of the relevant
circumstances and law.” Blunt, 2024 WL 4543319, at *2.
Finally, Plaintiff’s invocation of Marx’s 2011 ascension to the office of Fairfield County
Prosecuting Attorney is irrelevant to the issue at hand. The Monell claim is based on the alleged
violations that occurred during Plaintiff’s 2000 prosecution. What office Marx attained some
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eleven years later, and the decisions he made once in office, bear no connection to the actions he
took in the 2000 prosecution. As the district court wisely observed, a municipality can only be
held liable under Monell if the municipality’s actions are “the moving force behind the violation.”
Summ. J. Order, R. 124, Page ID #6656 (citing Monell, 436 U.S. at 694). Thus, “Marx’s later
conduct as County Prosecutor cannot have been the moving force behind his Brady violations in
2000.” Id.
In summary, Plaintiff’s Monell claim was properly dismissed at summary judgment.
Plaintiff has failed to show that the Brady violation was ratified by the final decision-making
authority in the Fairfield County Prosecuting Attorney’s office. Instead, the Brady violation was
committed and ratified only by Marx, who did not hold final authority.
III. CONCLUSION
The district court’s determination to grant Marx’s motion to dismiss and grant summary
judgment in favor of the remaining defendants was without error. Thus, for the reasons set forth
above, this Court AFFIRMS the judgment of the district court.
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